187 P. 49 | Cal. Ct. App. | 1919
The defendant was convicted of a violation of section
[1] The appellant relies upon the rule of law that where one offense is a necessary element of another, and both were in fact one transaction, a judgment on one is a bar to a judgment upon the other. The prosecution concedes that to be the law. (People v. Defoor,
[2] On the other hand, the authorities sustain a view contrary to that advanced by the appellant. In People v.Bentley,
"In the first case (reported in 65 Ind.) the rule on the subject we are now treating is stated as follows: 'When the same facts constitute two or more offenses, wherein the lesser offense is not necessarily included [involved] in the greater, and when the facts necessary to convict in the second prosecution would not necessarily have convicted in the first, then the first prosecution will not be a bar to the second,although the offenses were both committed at the same time andby the same act.' And in the other case (66 Ind.) it is said: 'The usual test by which to determine whether the former conviction or acquittal was for the same offense as that charged in the second prosecution, and therefore whether the former is a bar to the latter, is to inquire whether the evidence necessary to sustain the latter would have justified a conviction in the former case.' "
Applying the rule last stated, we do not see how it can be consistently argued that the evidence necessary to support the charge of kidnaping would be sufficient to sustain a conviction on the charge of rape, which was involved in the former case. Facts establishing the crime of kidnaping beyond any and all reasonable doubt might in the instant case fall far short of sustaining the other offense. To the same effect arePeople v. Devlin,
Kerrigan, J., and Wood, J., pro tem., concurred.